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2020 (10) TMI 959 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - scope of Financial Credit - Competent person or not - disputed debt of debt due - time limitation - legally recoverable debt or not. Whether Application filed by the Financial Creditor is not filed by a competent person? - HELD THAT:- The Financial Creditor has the proper authority to file the present application, and the objection raised by the counsel for the Corporate Debtor is merely incongruous, and therefore, holds no water. Moreover, the Financial Creditor has annexed the Board Resolution dated 05.08.2019 authorising Deputy Manager (Legal) to represent the Financial Creditor before various forums from time to time - there are no merit in the argument made by the Corporate Debtor in this connection. Whether the alleged debt in the application is a disputed debt and it is not 'due'? - HELD THAT:- It is settled law as decided by the Hon'ble NCLAT in its order in Vinayaka Exports and Anr Vs M/s Colorhome Developers Pvt. Ltd [2019 (9) TMI 968 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI] the existence of dispute is not relevant for Financial Creditor. Therefore, there are no merit in the contention raised by the Corporate Debtor. Whether application filed by the Financial Creditor under Section 7 of Insolvency and Bankruptcy Code, 2016 is barred by limitation? - HELD THAT:- It is now a settled case law that the acknowledgement of debt in the balance sheet of the Corporate Debtor extends the period of limitation - From the records it is observed that the Corporate Debtor from 2012 to 2019 made entries in the Balance Sheet about the amount due to the Financial Creditor - this amounts to acknowledgement of debt and, therefore, the application is not barred by the limitation. Whether the respondent Corporate Debtor is not a Corporate Debtor as there is no legally recoverable debt? - HELD THAT:- It is evident that the Corporate Debtor defaulted in repaying the loan, Revenue Recovery notice and requisition was initiated by the Financial Creditor against the Corporate Debtor and its guarantors in the year 2012. Against the said action, several Writ Petitions were filed by the Corporate Debtor and its guarantors to obtain stay against the RR action initiated by the Financial Creditor. Even otherwise, it is trite and a well settled law that pendency of proceedings before other forums is not a bar to initiation of Corporate Insolvency Resolution Process under Section 7 of the Insolvency and Bankruptcy Code, 2016 - the Financial Creditor is trying to recover his dues through various legal actions which was being contested by the Corporate Debtor at every stage. In the absence of any adverse order in the above proceedings and after thoroughly perusing the documents executed by the Corporate Debtor with the Financial Creditor, the debt in question is legally recoverable debt and therefore reject the contention that respondent company is not a Corporate Debtor as there is no legally recoverable debt. Thus, the present application filed by the Financial Creditor is satisfying all the definitions of "Financial Creditor", "Default" and "Financial Debt" and qualifies for filing an application under Insolvency and Bankruptcy Code - the Application under Sub-Section (4) of Section 7 of I&B Code, 2016 is complete and deserves to be admitted for initiation of Corporate Insolvency Resolution Process against the Corporate Debtor. Application admitted - moratorium declared.
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